Shop N Save operates a convenience store located on Martin Luther King Jr. Parkway in Des Moines. As a limited food / retail sales establishment, it may derive no more than forty percent of its gross sale receipts from the sale of liquor, wine, beer, and tobacco products. In March 2015, Shop N Save applied for a conditional use permit to operate as a liquor store, which would eliminate the store’s limit on gross sales receipts from the sale of those products.

At the zoning board of adjustment hearing held in April 2015, city staff recommended denial of the permit, and neighbors testified of crime and nuisance issues associated with liquor sales at the location. The board also noted the close proximity of the liquor store to residential property.

Based on this testimony and the proximity to residential uses, the board voted to deny the permit.

In May of 2015 Shop N Save appealed to district court arguing that the board illegally denied the permit. The district court affirmed the decision finding that the board had relied on substantial evidence to deny the permit. Shop N Save appealed again to the Iowa Court of Appeals.

The Court of Appeals examined the case to determine if the Zoning Board of Adjustment acted within its authority in denying the permit.

According to the City of Des Moines’s zoning ordinance a conditional use permit must be show to conform to the following criteria:

The business conforms with [zoning restrictions].

The proposed location, design, construction and operation of the particular use adequately safeguards the health, safety and general welfare of persons residing in the adjoining or surrounding residential area.

The business is sufficiently separated from the adjoining residential area by distance, landscaping, walls or structures to prevent any noise, vibration or light generated by the business from having a significant detrimental impact upon the adjoining residential uses.

The business will not unduly increase congestion on the streets in the adjoining residential area.

The operation of the business will not constitute a nuisance.

Failure to comply with any one of these conditions is fatal to the application.

Shop N Save argues that the denial was not supported by substantial evidence because “only four individuals” spoke against the permit, and all of the issues raised took place when the store was under previous ownership.

The court disagrees, finding that the testimony of the neighbors in addition to an additional email from the neighborhood association were substantial evidence that issuing the permit could create a nuisance. The court states that Shop N Save’s assertions that things would be better in the future could have reasonably been accepted by the board, but they were not and that is within the board’s discretion.

Because the ZBA’s ultimate decision was supported by substantial evidence. The boards decision is affirmed.

Cecelia Kent purchased a previously undeveloped lot in Des Moines with the intent of building a single family home. However the winding road and a thirty-foot easement for a public storm sewer running diagonally across the back of the lot complicated Kent’s plans. On November 14, 2015, Kent appealed to the Des Moines Zoning Board of Adjustment for an exception to the district’s fifty-foot front yard setback, allowing her to build a house with a front yard setback of just thirty feet. She also asked the board for a variance to the setback required for a parking lot and an exception to the side yard setback.

The board denied the variance and the side yard set back, but voted to approve the exception to the front yard setback.

(1) the board failed to make required written findings
(2) substantial evidence does not support the grant of an exception.

As quasi-judicial bodies, boards of adjustment are required to make written findings of all facts present. The intent of these is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.” In this case, the court of appeals determined that the staff report as well as the minutes of the discussion during the meeting was sufficient to allow the court to determine the factual basis and legal principles upon which the board acted.

The criteria that the board is required to consider in granting an exception is detailed in Des Moines City Code:

1. (a) Such exception does not exceed [fifty] percent of the particular limitation or number in question . . .
2. The exception relates entirely to a use classified by applicable district regulations as either a principal permitted use, a permitted accessory use, or a permitted sign, or to off-street parking or loading areas accessory to such a permitted use;
3. The exception is reasonably necessary due to practical difficulties related to the land in question;
4. Such practical difficulties cannot be overcome by any feasible alternative means other than an exception; and
5. The exception is in harmony with the essential character of the neighborhood of the land in question.

Graziano challenged that the board had failed to show to show that there was no “feasible alternative” to granting the exemption and that the reduced setback would be “in harmony with the essential character of the neighborhood.”

With regards to feasible alternatives, the meeting minutes show that the board of adjustment did discuss the possibility of moving the easement as well as to whether a smaller reduction to the setback might be adequate. Although this reasoning was not included in the final written findings, the court found this to be adequate to support the fact that the board “substantially complied” with the mandate to consider feasible alternatives.

Graziano also challenged that by not including expert testimony on the effect that this exemption may have on neighboring property values, the board failed to show that the setback would be “in harmony with the essential character of the neighborhood.” The court found that expert testimony is not required citing an earlier case which found:

[T]he board may rely upon “commonsense inferences from evidence relating to other issues, such as use and enjoyment, crime, safety welfare, and aesthetics, to make a judgment as to whether the proposed use would substantially diminish or impair property values in the area.”

The court affirmed the district court’s ruling upholding the exception granted to Kent.

This dispute concerns the repair and maintenance of a 600 foot fence separating the properties of Matthew Hopkins and Robert Dickey. Iowa’s Fence Code 359.17(1) uses the “right hand rule” to determine who is responsible for the maintenance of a fence. Essentially, if the two property owners were to stand facing one another at the center of their adjoining property line, each is responsible for the fence to his/her right unless an alternate agreement is made in writing. In this case, Dickey is responsible for the west 300 feet and Hopkins is responsible for the east 300 feet.

In 2010 after several instances of cattle escaping, Dickey informed Hopkins that he needed to repair that portion of the fence. Hopkins declined to do so, stating “that’s not what the law requires” and he already had “too many projects.” Dickey filed a complaint with the local township trustees, who are responsible for managing fence disputes. The trustees ordered Hopkins to “erect and maintain the East 300 feet of the partition fence” and that such be a “lawful fence” having “five barb wires attached to posts not more than 10 feet apart.”

Hopkins appealed the trustees’ decision to district court. The district court upheld the trustees’ decision, finding the application of the right-hand rule was both “a customary practice” and “fair and equitable.” Hopkins then appealed to the Iowa Court of Appeals alleging:

A verbal agreement with the previous landowner excused Hopkins from all responsibility to maintain the fence.

The fact that the decision only applied to him violated case law that states that Iowa’s fence law exists “to equalize the partition fence burden.”

The specifications that he was ordered to build the fence to exceeded those required by law.

The court of appeals affirmed the district court on all three points.

The alleged prior verbal agreement is hearsay and therefore inadmissible. Further, even if a prior agreement existed, it should be legally recorded according to Iowa Code 359A.13 to have any authority.

The fact that the court order only applies to Hopkins does not violate the principle of equalizing the burden as, at the time of trial, Dickey had recently rebuilt half of the partition fence. The court stated that it is undisputed that the portion of the fence built by Dickey was “in good repair” at the time of the fence viewing. Therefore it was not necessary to order Dickey to maintain the fence.

Finally, the appeals court found that the trustees have some leeway in deciding what constitutes a legal fence:

The term “legal fence” as defined in the statute is not a prescription, however, for how every partition fence must be constructed or what fence viewers must require, but sets forth a minimum standard for a “legal fence.” […] In this case, the fence viewers and the court determined Hopkins was responsible for a portion of existing fence that was in such disrepair it did not constitute a “legal fence.” The district court ordered Hopkins to construct a new fence in keeping with the style and character of the existing fence and in keeping with the fence constructed by Dickey and approved by the fence viewers.

In 2014 North Liberty was in the process of developing what would become Iowa City Liberty High School to alleviate overcrowding in the Iowa City School District. However, the site selected did not have access to sanitary sewer. To service the area, the City of North Liberty explored several options before selecting its ultimate path in 2014. This path crosses the private property of 13 individuals. The city was able to secure temporary easements (for construction) and permanent easements (for ongoing maintenance) from 12 of the 13. The final holdout was Dr. Gary Weinman who first sought through a pair of lawsuits to force the city to stop construction and reconsider other routes. Those suits failed.

Easements are always considered takings and therefore Weinman was entitled to just compensation under the Fifth Amendment. A compensation commission decided that Weinman was entitled to $75,000. This included a temporary easement for construction (1.1 acres for four months) and a permanent easement (.75 acres). The city appealed claiming that amount was excessive. Weinman requested a jury trial so the matter was tried de novo to the jury. The jury set the compensation amount at $25,000 relying largely on the testimony of an expert assessor brought by the city.

Weinman appealed this decision to the Iowa Court of Appeals. The Court of Appeals does not generally reverse compensation awards provided that they are not “wholly unfair or unreasonable.” In this case, because the jury’s decision was reasonable based on the evidence, the award of $25,000 was affirmed.

Members of the Lansing City Council voted to remove city council member William Burke from office for claimed violations of our open meetings law (OML). On one occasion the council issued an agenda for a closed session “to discuss strategy in matters that are presently in litigation or where litigation is imminent.” After the agenda was issued, the city clerk requested an opinion from the Lansing city attorney as to whether the two topics she understood to be up for discussion actually qualified for closed session under the OML. The city attorney opined that the topics did not, in fact, qualify for closed session. The clerk forwarded the memo to the city council members, including Burke. Burke notified the clerk that he disagreed with the clerk’s characterization of the purposes of the meeting as the clerk had reported them to the city attorney. When the scheduled meeting was held the council voted 2-1 to go into closed session, with Burke being one of the two council members to vote in favor. Later, the council held another special meeting on an unrelated matter. Twenty-four-hour notice was not given.

Tensions between the council and residents resulted in an investigation by the Allamakee County attorney into the council’s actions. The county attorney filed a petition alleging the two meetings violated the OML. The attorney retained to represent the council and its members concluded the county attorney had “made some legitimate allegations,” and predicted fines, costs and attorney’s fees will likely be assessed against each council member. The attorney set forth a potential settlement strategy she had discussed with the county attorney that would require Burke to resign from the council in exchange for dismissal of the lawsuit. After a closed session of the council which Burke did not attend, the mayor petitioned the council to remove Burke from office for “willful misconduct and maladministration in office” in his handling of several matters relating to OML which resulted in litigation against the city and members of the council. After a special meeting, the council voted 4-0 to remove Burke from office (Burke abstained from the vote). Thereafter Burke challenged his removal in district court, raising several issues with the council’s proceedings. The district court denied Burke’s petition, and Burke appealed. The sole issue considered by the Court of Appeals was procedural due process.

Burke argued that the removal proceeding was fundamentally unfair because each member of the council who voted on his removal had a pecuniary conflict of interest in deciding his fate, and the “council itself generated the factual record necessary to sustain its decision, which perpetuates its conflict of interest.” The Court of Appeals determined that Burke did not receive a “fair trial in a fair tribunal” as required by the Constitution. The council members understood that they would eliminate their own financial exposure for possible violations of the OML if they removed Burke. Furthermore, the council combined the prosecutorial function (by authorizing initiation of the removal process) with the adjudicative function (by presenting their own witness testimony to document their own personal knowledge of the grounds for removal).

Because the removal proceeding violated Burke’s right to procedural due process, the Court of Appeals sided with Burke and reversed the order of the district court.

Nicol and Street took title to property in Monroe, Iowa by warranty deed in 2013. Beginning in May 2013, and over the two years that followed, the city sent them five letters regarding their failure to maintain the property. Nicol and Street failed to take action, and so in April 2015 the city filed municipal infractions against the couple for several violations regarding junk, vehicles, and garbage on the property. After a hearing in August 2015 the court entered judgments assessing civil penalties, and ordering them to fully abate the violations. They did not do so. Additionally, they failed to pay property taxes since purchasing the property, and utilities were not turned on at the property after June 2015.

In January 2016 the city petitioned for title to the property, alleging it was abandoned under Iowa Code 657A.10A. Nicol and Street moved for dismissal, alleging that the statute is an unconstitutional taking of private property for a public purpose without just compensation. The court denied the motion, and found at the end of a bench trial that the property met the definition of “abandoned” under the statute. It entered an order awarding title to the city, and the couple appealed.

Statutes are presumed to be constitutional, and to prove otherwise a petitioner must “negate every reasonable basis upon which the statute could be upheld as constitutional.” In determining whether the statute is reasonable, courts consider “such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss which appellants will suffer from the imposition of the ordinance.”

The Court of Appeals reviewed the procedural safeguards incorporated into 657A.10A, including that the city cannot act less than 60 days from the filing of the petition and must show that the owner did not make a good-faith effort to comply with the order, and concluded that awarding title to the property is a reasonable “final resort against those property owners who have otherwise failed to comply with housing codes, building codes, nuisance laws, or tax assessments when less drastic steps toward compliance have failed.” It further noted:

Even in the event of a complete taking, the State is not required to compensate a property owner if it can show that the owner’s bundle of rights never included the right to use the land in the way the regulation forbids….657A.10A provides a sanction for those who use their property in a manner that was already prohibited. Because the statute does no more than duplicate the result that could have been achieved in the courts by adjacent landowners under the law of private nuisance, or by the State [in the case of public nuisances] it is not a constitutional taking for which compensation is required.

In September 2014, McCleary applied to the Des Moines Zoning Board of Adjustment seeking several conditional use permits and variances to allow him to operate a pet boarding business out of his home. A public hearing was held on September 22. The board voted to deny all of McCleary’s requests on October 23, 2014. On November 25, 2014 McCleary filed a petition for writ of certiorari appealing the board’s decision. Because of constitutional claims, the case was first sent to federal court. On March 11 the federal district court dismissed all McCleary’s federal claims and the case was remanded to state court.

On October 6, 2015 the Board of Adjustment filed a motion to dismiss arguing that McCleary’s petition for a writ of certiorari was late. State law allows for appeals to be filed only in the 30 days after a decision is made final. On November 2, McCleary filed a motion to disqualify the board’s attorney as that same attorney had previously represented McCleary in another matter. The district court determined on December 18 that McCleary’s petition was indeed untimely. The court also concluded that the plaintiff did not provide substantial evidence that his prior relationship with the defendant’s attorney bore “any relationship to the instant matter.” The district court granted the board’s motion to dismiss.

McCleary appealed that dismissal to the Iowa Court of Appeals. They reviewed the district court’s decisions in the areas of the timeliness of McCleary’s appeal as well as whether the board’s counsel should have been disqualified.

Timeliness Iowa Code section 414.15 establishes the right to appeal a decision from a zoning board and provides “[s]uch petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.” Because McCleary filed his appeal more than 30 days after the board made its decision, the district court did not have jurisdiction to hear it. McCleary asserted that his motion for declaratory relief was not subject to the same timeliness requirements as writs of certiorari. The Court of appeals disagrees. “Regardless of the avenue of relief McCleary chose, he was still appealing the decision of the zoning board and was subject to the statutory requirements of such an appeal.”

Disqualifying Counsel Because the attorney representing the board had previously been involved in representing McCleary, he claimed that the attorney should be disqualified.In determining if a prior relationship is enough to disqualify an attorney the court must determine if the two matters are substantially related. To do so, the court examines three factors:

the nature and scope of the prior representation;

the nature of the present lawsuit; and

whether the client might have disclosed a confidence to [their] attorney in the prior representation which could be relevant to the present action.

The attorney described their prior relationship as, “providing a model letter of intent for a business purchase and reviewing a draft of the letter written either by [the former partner] or by Mr. McCleary.” He also stated that he, “did not meet Mr. McCleary in person and recall no further involvement in the transaction.” McCleary claims a connection exists because the prior representation involved the same property on which he eventually attempted to establish his pet boarding business. The court failed to see how assisting McCleary’s representation in the property transaction would make him privy to any information that would be relevant to this zoning variance request.

On both matters the court of appeals affirmed the ruling of the district court.

Shop N Save applied for a conditional use permit (CUP) that would allow the business to sell wine and beer. The store in question is located in a C-1 neighborhood retail commercial district in Des Moines. Previous owners of the store had been permitted to sell liquor, beer, and wine, but the store’s liquor license was suspended for the year leading up to the CUP application, and due to changes in the city’s zoning regulations the new owner was required to seek a CUP to resume alcohol sales.

At the beginning of the hearing on the CUP, city staff presented its report to the Des Moines Zoning Board of Adjustment (ZBA) recommending approval of the CUP subject to ten conditions. Staff presented the ZBA with letters from local neighborhood associations, as well as police reports from the neighborhood. Staff noted, however, that the Shop N Save had either been closed or barred from selling alcohol for most or all of the time covered by the police reports.

Counsel for Shop N Save, in his presentation, conceded “there had been problems in the past” with crime around this Shop N Save, but asserted the new owner was willing to work with the neighborhood associations to address those problems. In responding to the testimony of the neighborhood association representatives that voiced concerns about crime, Shop N Save counsel resisted their recommendations for the imposition of conditions over and above those recommended by staff, and suggested the best course would be to “come up with a plan together.”

ZBA members questioned the legitimacy of the ownership transfer. Shop N Save counsel acknowledged that the store was being run by “a combination of [old and new management] but it’s generally the new management…running the store” and admitted that the official transfer of ownership had not yet occurred.

In a 4-1 vote the ZBA denied the CUP, citing concerns about the ambiguity in the ownership transfer and the problematic history of the location. Shop N Save appealed this decision to the district court, which affirmed the denial, finding substantial evidence for the ZBA’s decision. Shop N Save appealed to the Iowa Court of Appeals.

The Court of Appeals highlighted several well-settled points of law concerning the consideration of conditional use permits by zoning boards of adjustment, and by courts reviewing those decisions, that are worth reviewing:

A conditional use permit is meant to provide flexibility in what otherwise would be the rigidity of zoning ordinances, while at the same time controlling troublesome aspects of somewhat incompatible uses by requiring certain restrictions and standards.

It is the burden of the applicant to show that all the conditions of the ordinance are satisfied.

A decision by a zoning board of adjustment enjoys a strong presumption of validity.

A board may deny a conditional use permit for reasons relating to public health, safety, and welfare, but generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for a CUP denial.

If the reasonableness of the board’s action is open to a fair difference of opinion, the court may not substitute its decision for that of the board.

An appellate court is bound by the district court’s factual findings if they are supported by substantial evidence in the record. Evidence is “substantial” if a reasonable person would find it adequate to reach the given conclusion, even if a reviewing court might draw a contrary reference.

Shop N Save argued that the ordinance requirement that “the proposed location, design, construction and operation of the particular use adequately safeguards the health, safety, and general welfare of persons residing in the adjoining or surrounding residential area” may not even apply to the sale of beer and wine because the sale of such products is separate from the “physical characteristics of the property.” The Court of Appeals rejected this argument, finding that the language is broad enough to regulate not only the location, design, and construction of the business but its operation as well. The Court further found that the ZBA’s denial was based on more than generalized or unsupported neighborhood opposition, and included reliance on specific incidents described in neighbors’ testimonies, and on the dramatic reduction in crime that resulted when liquor sales were ended at a similarly situated convenience store in another neighborhood. Finally, the Court found the ZBA was well within its authority to consider the pending owners’ “tepid” responsiveness to neighbors’ serious reservations as a signal that past problems were likely to continue into the future, regardless of any conditions the ZBA could impose.

In the spring of 2015, the City of Harris was ordered by the Iowa Department of Natural Resources to update its aging sewer system and lagoon. Harris, population 170, lacked adequate resources for the project, so the city sent a letter to the Osceola County Board of Supervisors, “asking for help with possibly doing a TIF [Tax Increment Financing district] on the windmills for infrastructure within the City.” The county agreed to help establish an urban renewal area including new windmills located in the county and the sewage lagoon in the City of Harris.

In a meeting on October 20, the board of supervisors passed a resolution to establish the urban renewal area and approve the urban renewal plan. At the same meeting, the board also introduced Ordinance No. 47, which was to establish the TIF district, for its first consideration. On October 27, the board of supervisors gave Ordinance No. 47 its second consideration.

On November 3, the plaintiffs in this case, filed a petition for writ of certiorari and declaratory judgment. The plaintiffs, who are resident taxpayers of Osceola County, alleged that the city and county had “adopted a Resolution that created an urban renewal area that includes the City of Harris and wind energy conversion property […] located outside of the City of Harris[… The] resolution is unlawful because it violates Iowa Code Chapter 403 and the Iowa Constitution.”

On November 10, the board of supervisors held the final consideration of Ordinance No. 47 and adopted it. Then on November 30 the board held a special session and entered into a written urban renewal joint agreement with the City of Harris, “confirming prior verbal agreement and understanding.”

In February 2016 the plaintiffs filed a motion for summary judgment. They alleged that the county had acted illegally in establishing the urban renewal area before the joint agreement had been signed. Additionally, they alleged that the urban renewal area was not an “area” because the wind energy conversion property is not connected to the sewage project in Harris. They claimed that they had standing to sue because they were harmed as taxpayers in Osceola County.

Osceola County and the City of Harris filed a motion for summary judgment, and the district court granted it, finding the plaintiffs lacked standing to challenge the resolution and their claims involving the ordinance were untimely. The final passage of the ordinance took place after the plaintiffs filed their petition. The plaintiffs’ petition was dismissed. On appeal, the plaintiffs challenged the district court’s ruling and maintain that the merits of their motion for summary judgment should have been granted instead.

On June 7 the Iowa Court of Appeals considered the issues of the timeliness of the petition as well as the standing of the plaintiffs.

The taxpayers argued that each of the considerations of the ordinance was a challengeable action. Here, the Iowa Court of Appeals agreed that the plaintiffs’ challenge to the ordinance was untimely. Iowa case law provides that the challengeable action occurs “when the underlying proceeding becomes final.”

With regards to standing, the Court of Appeals agreed with the plaintiffs that as residents and taxpayers of Osceola county they stood to be harmed citing an earlier case that stated: “by its nature, TIF diverts property tax revenue that would otherwise be available to the regular taxing district.” Further the court of appleals found that although the plantiffs were untimely with their challenge to the passage of the ordinance, the plaintiffs did have standing to challenge the earlier resolution. It is reasonable to assume that the passage of the resolution meant that the ordinance would be passed as well.

The Court of Appeals remanded the case back to district court for further proceedings.

In March 2015 the Madison County Zoning Office filed civil infractions against the Dewits for several zoning ordinance violations. The case number assigned to these infractions was CVCV034188. These infractions were resolved through a consent order in September 2015 which required the Dewits to abate the violations within six months (by February 2016). After the consent order was issued, the Dewits filed an application for an agricultural exemption from the county’s zoning ordinance, which the county zoning administrator denied. On appeal, the Madison County Zoning Board of Adjustment (ZBA) affirmed the denial.

On April 20, 2016 the Dewits filed a petition for writ of certiorari challenging the ZBA’s decision; however, they filed it in the civil infraction case CVCV034188. The county attorney accepted service of the petition, but the original notice was not included in the materials sent to or accepted by the county attorney. The county moved to dismiss the petition on the ground that the petition should have been docketed as a new action and not as a filing in the civil infraction case. On June 7, 2016 the district court denied the motion to dismiss, and ordered the clerk of court to transfer the petition and all related filings to the appropriate docket and to assign a new case number to the petition.

The ZBA then filed a motion to dismiss on September 1, 2017 for failure to timely serve original notice on the board. The next day the Dewits served notice on the ZBA, but this was 135 days from the original filing of the petition on April 20. (Iowa Rules of Civil Procedure require original notice to be served on a defendant within 90 days of filing a petition).

The Dewits contended that the original notice was served on the ZBA 80 days from the day the district court transferred the petition to a new docket with a new case number; however, at the time the district court specifically ordered that the petition “would relate back to and be deemed to have commenced on the date of filing, April 20.” Thus service of the original notice did fall outside the 90 day window.

The Dewits also contended that the county attorney’s acceptance of the petition alone is sufficient to comply with Iowa Rules of Procedure. The court rejected this as well.

The original notice and petition are separate and distinct….The contents of the original notice are prescribed by rule. In contrast, the petition is a pleading that sets forth a simple and concise statement of the claim or claims at issue. [While] it is true Iowa courts are committed to liberal construction of the rules of procedure to insure resolution of disputes on their merits, the failure to timely serve original notice cannot be deemed a minor or technical error.